RD 1026/2024, of October 8, develops the business obligation to have a planned set of measures and resources to achieve real and effective equality of LGTBI people, including an action protocol for dealing with harassment or violence.
Which companies are obliged to do so?
Companies with a workforce of more than 50 employees. However, this does not prevent companies with a smaller workforce from negotiating the implementation of this type of measures on a voluntary basis.
How should they be negotiated?
The negotiation of the planned measures is articulated through collective bargaining, considering the following cases:
In those cases in which there is a company-wide collective bargaining agreement, their negotiation will be carried out within the framework of the latter.
If there is no company collective bargaining agreement and a higher-level agreement is applicable, the measures will be negotiated within the framework of this agreement.
The procedure for negotiating the planned measures will be that established in article 87 of the Workers’ Statute.
In the case of companies where there is no applicable collective bargaining agreement, but where there is legal representation of the workers, the planned measures will be negotiated by means of company agreements. In companies with several work centers, the Intercenter Committee will negotiate, where appropriate, if it has established competencies to do so.
On the other hand, in those cases where the company is not under the application of a collective bargaining agreement and does not have legal representation of the workers, the measures will be negotiated by means of a negotiating committee made up of the Company’s representatives and the most representative trade unions both in the Company and in the sector.
Deadline for initiating negotiations and determining the planned measures
Companies obliged to negotiate the planned measures by means of collective bargaining agreements or company agreements: they must start negotiations within a maximum period of three months from the entry into force of the Royal Decree. This period will therefore end on January 10, 2025.
Companies that are not under the application of a collective bargaining agreement and do not have legal representation of the workers: the maximum term to initiate the negotiations and constitution of the committee will be six months from the entry into force of the Royal Decree. This period will therefore end on April 10, 2025.
On the other hand, as regards companies that do not currently have a workforce of 50 workers, the three-month period will begin to run from the moment they reach this volume.
Term and follow-up period
The period of validity will correspond to the period agreed upon in the collective bargaining agreement by the negotiating parties.
Likewise, it should be noted that monitoring and evaluation periods may be established for compliance with the agreed planned measures, as well as the cases in which evaluations are carried out.
What should be the minimum content of these measures?
In companies that do not have a collective bargaining agreement with a scope greater than that of the company, the agreement will be structured, at least, with the following content:
- Determination of the negotiating parties.
- Personal, territorial and temporal scope.
- Procedure for resolving any discrepancies that may arise in the application of the agreed planned measures.
In companies that have a collective agreement with a scope greater than that of the company: the personal, territorial and temporal scope shall be that established in the collective agreement itself.
In all cases, at least the planned measures set forth in Annex I of RD 1026/2024 must be contemplated:
1. Equal treatment and non-discrimination clauses that contribute to create a favorable context for diversity and to advance in the eradication of discrimination against LGTBI people.
2. Measures focused on the suppression of stereotypes in the access to employment of LGTBI people, especially through the adequate training of the people who participate in the selection processes.
3. Regulation of criteria for professional classification and promotion, based on objective elements, among others, those of qualification and capacity, guaranteeing the development of their professional career under equal conditions.
4. Integration in company training plans of specific modules on the rights of LGTBI persons in the workplace aimed at the entire workforce.
Minimum content:
- General knowledge and dissemination of the set of planned LGTBI measures.
- Knowledge of the basic definitions and concepts of sexual, family and gender diversity.
- Knowledge and dissemination of the protocol for accompanying trans people in employment (if available) and the protocol for the prevention, detection and action against discriminatory harassment or violence based on sexual orientation and identity, gender expression and sexual characteristics.
5. Promoting the heterogeneity of the workforce to achieve diverse, inclusive and safe work environments. To this end, protection against LGTBIphobic behavior will be guaranteed, especially through protocols against harassment and violence in the workplace.
6. Guarantee the enjoyment of leave, social benefits and rights of all workers, without discrimination based on sexual orientation and identity and gender expression, considering the reality of diverse families.
7. Integration in the disciplinary regime of infractions and sanctions for behaviors that violate sexual freedom, sexual orientation and identity and gender expression of workers.
Protocol against harassment and violence
In addition, it will be mandatory in all cases to include a protocol against harassment and violence where preventive practices and mechanisms for detection and action against it are identified. Its structure and content must be adjusted to the following sections as a minimum
1.Statement of principles
2.Scope of application
3. Guiding principles and guarantees of the procedure: agility, diligence and speed in the investigation and resolution of the conduct denounced.
4. Procedure for filing a complaint or denunciation, as well as the maximum time limit for its resolution.
5. Resolution.
This obligation will also be understood to be fulfilled when the company has a general protocol against harassment and violence that includes measures for LGTBI people or extends it specifically to include them.
For further information, please consult with Labor consulting
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